Bill to establish plaintiffs right to the manor, &c. of Sherborn Castleton in the county of Dorset, to Greenwax fines, &c., and also poundage fees on executions and Retorna Brevium, &c. by virtue of a grant 14 Jac. 1. The bill was brought against three succeeding sheriffs of the county, and Templeman, who had been the undersheriff for three or four years, and as to him to have an account of what poundage fees, &c. he had received within the liberty: the title set forth by plaintiff was, that King James I. granted to Sir John Digby (after earl of Bristol), from him they descended to George, from him to John earl of Bristol, and on his death vested in plaintiff.
It was objected at the hearing that here was not a sufficient title set forth, it not appearing how the premises vested in plaintiff, whether by descent, settlement, or how.
And per tot' cur' the bill ought to be dismissed for that reason; the bill being to establish a right, as well as for an account; and upon this the cause went off, but plaintiff had liberty to amend his bill. Hanbury, 195.
[18] In the Kings Bench the sheriff returned Mand' ballivo' Libertatis de D. and it was said that he hath not such a franchise, and if it be inrolled in the chancery that A. hath retorna brevium, yet if it be not inrolled in the exchequer, as the statute of W. 2. c. 39. and if the sheriff return other liberty he shall be punished as a disinheritor of the Crown by such statute, and the justices may send certiorari out of chancery to the treasurer, that he bring the roll of liberties in his hand, and shew it to the justices. 11 E. 4. 4. Br. Retorne de briefe. 98.
This Roll of Liberties is supposed to be lost; at least the clerks of the Treasurers Remembrancers office, on inquiry there, could give no account of it; any more than the bag-bearer of the Kings could of the "little booke," mentioned by Powell to be in the Kings Remembrancers office, "intituled, Liber de Ball. pro Angl. of all the bailiwicks throughout England," which he calls "an ancient booke, made Anno 1180."
Per Curiam, where the bailiff makes insufficient return, the sheriff may return quod nullum dedit responsum, for an insufficient return is as no return; and in præcipe against two, the bailiff returns the one summoned and the other not, this is no answer, and if the sheriff return this, he shall be amerceo, but by Vavisour if the bailiff make dubious return and the sheriff return it over he shall not be amerced, quære. 5 H. 7. 27. Br. Retorne de briefe. 89.
In Præcipe quod reddat, to the grand capias the sheriff returned quod mandavi ballivo, libertatis, who returns that he hath taken the land into the hands of the King, and says nothing that he hath summoned the tenant. Martin, another summons with non omittas shall be awarded, and the sheriff shall not be amerced, for the bailiff hath not served the writ; for as much as he had in commandment to do two things, and he has done but one; and so it is as if he had said nothing either of one or the other. Babb, a non omittas shall not be awarded but where the bailiff hath not given any return, but here he hath given a return which is not sufficient, and for this he shall be amerced. T. 4 H. 6. [25.] Fitz. Amercement. 1.
In trespass the sheriff returned the Capias quod mandavit Ballivo Libertatis, qui sic respondit quod cepit corpus; but the bailiff does not bring in the body; but the defendant would have answered by attorney, and was not received. And the plaintiff prayed Sicut alias to the sheriff, and non omittas. And for that the writ was served he could have nothing but a writ to the sheriff to distrain the bailiff to send the body, &c. 27 E. 3. 7.
[19] This nihil is to be understood, not only where nothing at all is done, but also where the bailiff of the liberty maketh an insufficient return, for that is nihil in law, and therefore a non omittas, &c. 2 Inst. 452.
[20] (1.) The King may have liberties by the suppression of abbeys (32 H. 8.) or by other means. And a liberty shall not be intended to be extinct, unless it be so shewn, but shall be said to be still in esse. Cro. Jac. 242.
When the King grants any privileges, liberties, franchises, &c. which were privileges, liberties, or franchises in his own hands as parcel of the flowers of his crown, as bona et catalla felonum fugitivorum utlagatorum &c. bona et catalla waviata, extrahur; deodanda, wreccum maris, &c. within such possessions, there if they come again to the King, they are merged in the crown, and he has them again in Jure Coronæ; and if the wreck, or goods waifed, estrays, &c. were appendant before to possessions, now the appendancy is extinct, and the King is seised of them in Jure Coronæ. But when a privilege, liberty, franchise or jurisdiction was at the beginning erected and created by the King, and was not any such flower before in the garland of the crown, there, by the accession of them again to the crown they are not extinct nor the appendancy of them severed from the possessions; as if a fair, market, hundred, leet, park, warren, et similia, are appendants to manors, or in gross, and afterwards they come back to the King, they remain as they were before, in esse, not merged in the crown, for they were at first created and newly erected by the King, and were not in esse before, and time and usage have made them appendant. 9 Rep. 25, h.
[21] Writ issued to the sheriff to enquire of waste, who returned quod mandavi ballivo libertatis qui mihi nullum dedit responsum, and for this he was amerced, and sicut alias awarded, because by the writ he is judge and hath power to enter the franchise. T. 11 H. 4. (81.) Fitz. Retourne del vicount. 53. But
Note, that sometimes the sheriff is judge, as in redisseisin, waste, and admeasurement, and the process shall be served by the baily as is said. Diversite des Courts. Court Baron.
Ejectione Custodiæ [under W. 2. c. 35.], at the distress with proclamation the sheriff returned mandavi ballivo libertatis, &c.; and by Thirning and Markham, the sheriff shall be amerced, for the proclamation is to be made by the sheriff by the statute. Therefore because the distress with proclamation is a thing entire, he ought to have entered the franchise and served the whole writ himself: and Rikhill and Tirwit e contra and that he did well, as in a præcipe quod reddat of land, part in guildable, and part in franchise, the sheriff shall make precept for parcel, and shall serve the rest himself. 2 H. 4. 1. Br. Ejectione Custodie. 1.
If a distress with a proclamation be granted, and the defendant hath nothing but within a franchise, the sheriff shall make proclamations in the county, and the baily of the liberty shall distrain him. 2 Inst. 442.
Where the issue is of land part gildable and part in franchise, the panel shall be returned part by the sheriff and part by the bailiff of the franchise, and they may join [in the return]; and the distress [shall be] by the sheriff only if the bailiff be slack. 19 H. 6. 48, 67. Br. Retorne de briefe. 50.
If assise be brought of tenements in two franchises the sheriff shall write to each bailiff, and both shall serve. Abr. Ass. 92, b.
Assise was brought of tenements in two vills, one vill was within the franchise and the other in gildable, and the bailiff of franchise made the panel, and for this it was challenged; for those of a franchise cannot have the view by commandment of bailiff of land out of the franchise, &c. And so the court thought. H. 18. E. 3. quære, how the writ shall be served? It seems that the writ shall abate, and that he shall be put to several writs, and namely where he may sever the thing, &c. for otherwise it will follow that the bailiff of the franchise shall never serve a writ, for a man may always put in the writ, part of the land gildable, &c. quære. Abr. Ass. 93.
[22] He is not servant to the sheriff, nor is any way subject to him (having as good authority in his office, and being as ancient an officer as himself).
Upon an issue the sheriff returned to the Venire Facias, and to the distress, as to 4 jurors he returned the writ served, and as to the remainder he returned mandavi ballivo de B. qui nullum, &c. Fortescue prayed that the sheriff should be amerced, for no writ may be returned by two ministers s. part by the sheriff and part by the bailiff. Newton, e contra. And afterwards, by advice of all the justices, the sheriff was amerced. H 19 H. 6. Abr. Ass. 144. 145.
It was assigned for error that in assize it appeared by the return of the sheriff, that he had found pledges before himself, and the bailiff of the franchise, to whom the return belonged, served all the rest of the writ; and the return adjudged good. 21 H. 7. 14.
[23] H. 49 E. 3. B. R. Rot. 4. Linc. proces per attachement per billam versus vicecomitem directed al coroner for the disturbing a lord of a liberty. L. C. J. Hales Discourse concerning the Courts of K. B. and C. P. (Hargraves Tracts, vol. i. p. 363.)
[24] In the Auctarium Additamentorum to Watts's edition of Matthew Paris is a warrant from the sheriff of Essex and Hertford to the bailiffs of the liberty of St. Albans, reciting a writ to the sheriff to summon the knights and freeholders of the said counties, &c. to be before the Kings commissioner with an express non omittas in case of the default of the bailiffs of liberties; which proves that the writ for the King was not at that time (37 H. 3.) a non omittas of itself.
[25] It seems that the sheriff ought to take notice of such a liberty at his peril, without the party shewing his grant to him but merely upon his saying that he hath one, because it is a matter of record. 1 Roll R. 119. Town of Derby v. Foxley.
[26] Rule to shew cause why a writ of non omittas capias ad respondendum, should not be quashed, discharged. The objection to the writ was, that it recited a mandate to have been issued forth by the sheriff to the bailiff of a liberty without naming what liberty, but leaving a blank for the same. The court held the objection to be valid, and that the proper way to take advantage of the defect is by motion; but it appearing that bail was put in to this writ before a judge, the objection now comes too late. Barnes. 416.
[27] Where the sheriff serves the process once of a thing local or permanent, as in Præcipe of land and such like, he cannot after return mandavi ballivo; but e contra of a thing transitory which may remove. 5 H. 7. 27. Br. Ret. de briefe. 89.
Thus in Alias Summons in Dower the sheriff can't return mandavi ballivo, for he ought to have made this return upon the first writ, that so the court might have awarded a non omittas; but if it relates to matters transitory, then the sheriff may return mandavi ballivo on the issuing of the second process, as on an alias capias, for the body might be in the liberty on the issuing of the second process, though it was in the guildable in the first; and therefore the return of the first process does not conclude him from returning the liberty to the second process. Gilb. Hist. C. P. 26.
[28] Urlin moved to stay proceedings, the process being served within the franchise of Bury St. Edmonds, and not by the proper officer, contrary to the late act of parliament. Per Cur': The act only preserves and saves the jurisdiction of particular liberties. The person injured must bring his action, the court cannot stay proceedings. Barns. 404.
[29] How far such a practice is consistent with the rights of the lord of the liberty or with the law of the land (and particularly with the act just above recited) is submitted to those whose duty it is to support both.
In Yorkshire it is usual for the sheriff to direct the warrant as well to the bailiff of the liberty as to one or more of his own bailiffs, who may take defendant if found extra libertatem. This method is unobjectionable, it prevents delay and answers all the purposes of a non omittas.
The bailiff of a franchise or liberty is he who in a free place, or portion of a county, taken away from the power of the sheriff, executes the business of the sheriff. Spelman.
The bailiff of the franchise is not minister to the sheriff but to the King. 8 E. 4. 17.
The bailiff of a franchise is an officer by himself, and hath not to do with the sheriff. 21 H. 7. 23.
The bailiff of a liberty is not servant to the sheriff, for the sheriff cannot make other return but according to that which the bailiff of the liberty certifies him. Keilwey, 89.
The Kings bailiff of his manor is immediate officer to the King. 33 H. 6. 29.
The bailiff of a liberty is such an officer as the court will take notice of. Pasch. 24 Car. B. R. Q. S. P. R. 122.